By Don Rehkopf, collected by George Barwood while following the 3rd trial of David Camm.
One of the (many) times that I’ve been threatened with Contempt of Court – and I’m generally contemptuous of elected judges who still think that they’re prosecutors – the prosecution had botched a case terribly and had forgotten to move for the introduction of the key bit of evidence in a fraud case. The prosecution “rested” and I immediately rested, without calling any of our 9 witnesses.
The judge paused, and said, “I’m granting the Government’s application to re-open its case.” Dumbfounded, I stood up and said, “They never made such an application!” Immediately the jurors chimed in as the prosecution’s table was right next to the jury box, saying “he didn’t say anything.” I asked for a hearing outside of the jury – a common practice as everyone knows, and the now pissed off judge said, “Be a man and say what you have to say!”
Without batting an eye, I said, “Sure Judge, why don’t you just take off your Black Robe and go sit next to the prosecutor to help him?”
As the jurors are laughing their respective butts off, he screams, “You’ve got 5 minutes to respond as to why I shouldn’t hold you in contempt.”
Things were going good for my client, so I said,
“I don’t need 5 minutes, ‘be a man’ and hold me in contempt!”
One juror was crying he was laughing so hard, but my rationale was, I didn’t have any co-counsel, if he held me in contempt, the law required a mistrial, and they’d never be able to re-prosecute my client. After an hour’s recess, the Judge “admonished me” for my “disrespectful attitude” and instructed the jury.
One minute and 45 seconds later, they returned with justice – not guilty. Sorry about the “war story,” but it seemed apropos . . . .
PIO or PAO [Public Affairs Officers] are generally the modern day Goebbels of the media. If their lips are moving, most likely every other word is a lie or significant distortion, spun to the tune of whatever the police/prosecution theory (of the day) is.
CLARIFICATION: A well known and widely respected journalist for a national media corporation, correctly pointed out to me that not all PIO’s or PAO’s are shills, which of course is true and my insinuation to the contrary was based upon my annoyance that incompetence has permeated this case [David Camm] from the beginning in virtually every aspect imaginable. My intent however remains the same – if a PIO/PAO can’t tell the truth, then say “no comment” and leave it alone rather than mislead people.
Richard Kammen and Al-Nashiri
And in the surreal “Theater of the Absurd,” just to let you know what else Richard Kammen has on his shoulders, is a GTMO death penalty case where ironically, one of the government prosecutors is named “Lockhart,” who doesn’t care about the Camm trial!
“Next up is AE153. That’s the defense’s motion to postpone the August, September, and October hearings, in light of conflicts. The matter was first raised in an 802 conference last October, Kammen notes—no argument about late timing here. The conflict is a homicide trial beginning on August 5, in Indiana; that case’s third. The past two trials have occupied roughly ninety days. Thus Kammen’s request for a three-month delay in the schedule.
Prosecutors don’t want to go along with Kammen’s request; so says Andrea Lockhart. Kammen took on his representation in the Indiana matter only after agreeing to represent Al-Nashiri. This is a death case, as the defense so often emphasizes. But, Lockhart says, the other matter is not, and Kammen hasn’t sought a continuance there. The court is visibly skeptical, given the evident alternative: Kammen obviously will have to seek a continuance in the Indiana case at some stage.
Kammen rises and is offended: when he undertook to defend Al-Nashiri, in 2008, the matter was suspended by the Obama administration. So no delay can be attributed to him, much less to any scheduling mishaps. In any event, the lawyer says his Indiana matter is the only one likely to pose a scheduling conflict such as this, and adds that the August 5 trial is firmly set by the judge.”
Recess is done. Does Richard Kammen want to be heard further on monitoring? You bet he does. What we’ve seen here is “plausible deniability,” Kammen says. Nobody ever tells anybody what’s going on: everyone forgets to, Welsh, Bogdan’s subordinates, and
A link: The right to present a defense Mark J. Mahoney
In the “put up or shut up” mode, I made a comment or two on my opposition to live television covering criminal trials. I adamantly oppose it, period. I have tried cases with live TV coverage and without. I’ve had a client appear with a bag over his head with eyes, ears and nose cut out (with the Judge’s permission) because he was facing a potential death penalty in Florida. I’ve taken pliers to court to cut the microphone that the TV kept putting on the defense table because they kept trying to record what my client and I were talking about, which about caused a riot. I’ve had TV cameramen “interrupt” the proceedings to ask the Judge for a recess to change batteries in their cameras, or to get a disk back to the station, you name it. If for one minute, my colleagues and I in the Defense Bar thought it would ever help our clients, we’d go for it. Studies have shown however, that the “hot dog” attorneys play to the camera and often lose sight of their clients and their causes. I could go on an on, but as I told James Jack, I would have no problem recording it for playback AFTER the verdict is announced. For those of you interested in the technical details, I’ve attached a monogram I did some years ago for a seminar in Mississippi.
Some observations and reflections. Some have commented here on the apparent obsession that the Special Prosecutor has with how much the defense experts have been charging — never mind that he could look at his own list of testifiers who have charged outrageous fees, while committing perjury, or simply having no scientific background. But, of course that is irrelevant because the state will pay whatever it costs to avoid the embarrassment of losing. Furthermore, it is a fallacy of Prosecution 101, that they (delusionally) believe that by their incessant and arrogant questioning of the defense experts, that rational, reasonably educated jurors will actually think that it is only the defense who is “buying” testimony. Hogwash!
Now, Sigmund Freud’s theory of “penis envy” probably has little validity in the context of gender relations, but in reflecting on 38 years of defending those that prosecutors (rightly or wrongfully) set their sights upon, it can and does apply to professional prosecutors. Why? Because they are jealous or “envious” of the amount of money even charlatans make compared to them. They erroneously think that premiere defense attorneys, such as Richard Kammen shouldn’t be billing $200K+ for this case. The error of their thinking – at least with respect to defense counsel – is that they don’t know what it costs to run an office, pay staff, rent, utilities, computer networks, etc., etc., because for the prosecution, the taxpayer pays for all of that.
But, what about the bogus experts charging $400+ / hour to give the prosecution what it wants to hear? Well, that’s different, they say, “we’re seeking justice!” But, if “justice” doesn’t come with a price tag for the prosecution, then why is there one for the defense? Good question and they can never answer it.
But, back to Freud. Prosecutors see ALL of this money being spent on everyone and everything, except themselves – poor babies. Elected prosecutors, depending on where you live, make between $90,000 and $150,000 per year, give or take a few nickels. Here we have experts who legitimately (and some illegitimately) charge double or even triple that for work on just one case! Dollar envy, which Freud would love to psycho-analyze, Bonehead aside.
Well, lets begin with facts – competent forensic scientists have studied (and learned) a lot of complex scientific principles and have learned the scientific method and how to apply all of that to a crime / criminal. How many prosecutors took (and passed) High School Biology, Chemistry, Physics AND advanced mathematics? From my personal experiences and informal questioning, I’ll say 75% and that’s probably very charitable. Now, go to college, how many of those same prosecutors took college level Chemistry, Physics, Molecular Biology OR advanced mathematics and passed? Maybe 10%. Now, how many of those same prosecutors have even a Masters degree in a “hard science,” forensic science or mathematics? Now, I know some people who after getting their MD degree, went back and went to law school, but those are generally forensic pathologists, medical malpractice experts etc. In 38 years, I’ve never seen an MD/JD prosecutor. I’ve encountered exactly 1 with a Masters in Forensic Science and he quit the DA’s office because “no one gave a damn about science!” Mainly because they don’t know or understand it. One military prosecutor had her Masters in Applied Mathematics because before she went to law school, she taught HS Math. So, in 38 years, my total over thousands of prosecutors I’ve encountered is just 2.
So, back to our friend Freud, vis-à-vis prosecutors, they ask stupid questions like, “How much have you billed for this case total?” Why? Because they lack the knowledge and experience to ask detailed and relevant questions. Knowing that he’d never taken Trigonometry, I once asked RE who was babbling about the “angle” of some blood-spatter on a ceiling which he estimated was 30 degrees. When I asked him how he computed the SINE angle without having done any measurements, his response was “40 years of experience.” Now there were 3 engineers on my jury [military case] and they all burst out laughing. The erstwhile, but honest prosecutor tried to salvage this by asking, “Did you use your pocket calculator to make that computation?” A: “Why, yes I did.” More laughter ensued to a clearly perplexed prosecutor, who wisely sat down.
For those of you a little rusty in your trig functions, you cannot compute the SINE angle (here the impact angle of the blood), without knowing 2 measurements, the length of the hypotenuse leg and the length of the adjacent leg and for a 30 degree angle, the hypotenuse is exactly twice the length of the adjacent leg. That’s a very simplified example because other factors, such as gravity also come into play, such as the blood spatter on the roll-bar of the Bronco.
So, the REAL experts, the guys and gals doing the measuring, the computations, the DNA extractions and amplifications, they EARNED the right to charge what they charge.
When you can’t concentrate your case on the evidence, you ask stupid questions about something else. <<End of Daily Rant – sorry>>
It is no secret that my cynical mind has a hard time locating even with a magnifying glass any “justice” in the State “criminal justice” system. The prosecution of David Camm is a prime example. I deal with a lot – far too many really – of “wrongful convictions” and one common denominator is prosecutorial misconduct. By that I am referring to intentional or deliberate actions designed to hide evidence or evade the truth, the “conviction at any cost” concept. There is also prosecutorial negligence, which is just sloppy preparation and failing to take the oath of a prosecutor serious – which can have equally as devastating results to a wrongfully accused defendant.
Some serious academic scholarship has been done on this problem, some of which I want to share with the group, so people have an understanding of how and why this occurs and what needs to be done by State Legislatures to fix the problem.
“Prosecutorial misconduct is largely the result of three institutional conditions: vague ethics rules that provide ambiguous guidance to prosecutors; vast discretionary authority with little or no transparency; and inadequate remedies for prosecutorial misconduct, which create perverse incentives for prosecutors to engage in, rather than refrain from, prosecutorial misconduct.”
“Studies of DNA exonerations have identified wrongful convictions based on prosecutorial misconduct that included: suppressing exculpatory evidence, knowingly using false testimony, fabricating evidence, coercing witnesses, making false statements to the jury, and engaging in improper closing arguments.”
“The prosecutor has a duty to ensure that police investigators and government witnesses act properly and testify truthfully. Thus, the prosecutor bears oversight responsibility for procedures for searches, obtaining confessions, the making of eyewitness identifications, introducing lab reports, and using jailhouse informants and other cooperating witnesses.”
“When prosecutors do not critically examine the evidence against the accused to ensure its trustworthiness, or fail to comply with discovery and other obligations to the accused, rather than act as ministers of justice, they administer injustice.”
“As studies of those exonerated by DNA evidence demonstrate, prosecutorial misconduct is a significant cause or contributing factor in wrongful convictions. Yet, there has not been a movement toward improving the ethics rules for prosecutors with the aim of explaining their ethical obligations more clearly.”
FROM: Peter Joy, “THE RELATIONSHIP BETWEEN PROSECUTORIAL MISCONDUCT AND WRONGFUL CONVICTIONS: SHAPING REMEDIES FOR A BROKEN SYSTEM,” 2006 Wisconsin Law Review 399, available at:http://hosted.law.wisc.edu/lawreview/issues/2006-2/joy.pdf
I point this out because I’ve given a lot of serious thoughts to the issue in this case, and taken many of the comments on this thread into consideration. Regardless of anyone’s personal feelings about any of the many prosecutors in David’s case, the fact remains that no court has ever found any indicia of “prosecutorial misconduct.” That is not a conclusion that none existed — only the identification of yet another problem in most States criminal justice systems, viz., elected judges who turn a blind eye to prosecutorial misconduct and negligence.
Courts “bury” this issue with a quaint little phrase that drives sincere and dedicated defense attorneys crazy: “Error, if any, was harmless beyond a reasonable doubt.” Now trials are composed of imperfect human beings and the law does not mandate “perfect” trials. But since the time of the Magna Carta, the law has imposed the requirement that Due Process means a trial that’s fundamentally fair. Here, David’s first two trials were not fundamentally fair – so much so that the appellate courts couldn’t ignore it.
Because, as noted above, the “rules” favor the prosecutors and the Courts have held that they are virtually immune from being sued, I doubt that expending much energy going down that road would be productive – but I personally would leave that decision to David. But I would urge anyone so inclined to get on (and stay on) their State Legislator’s butt to change the system, to make clear rules and make it clear that prosecutorial misconduct will not be tolerated in any shape or form.
And now I will go back to reading, “Don Quixote!” Carry on.
George, unlike the UK, where the Crown funds all prosecutions and anyone who cannot afford a defence Barrister, the US has a dual system. In our federal courts, the federal government provides full-time federal public defenders who are Civil Servants, and where necessary, pays private attorneys. Those rates are set by law. But in the State criminal justice system, different states do things differently depending on State Law. In some States, the State actually funds everything; in others there’s a formula approach – the State pays X% and the County pays Y%. In a couple of States, it’s totally left to the County. Here’s a good study and a chart at about page 5:JPI System Overload.pdf ) and here’s another good source:http://www.brennancenter.org/…/Gideon_Report_040913.pdf And ironically, here’s testimony by Richard Kammen before the US Congress some years ago on this issue:
( defense counsel )
The varsity members of the criminal defense fraternity [I don’t know of a gender neutral word, so bear with me] is a group of dedicated, slightly crazy and obsessive folks whose core philosophy is, if you want to “get” my client, you’ve got to go through me first. And when called upon, we cover each others’ backs in exchange for a cold beer or a glass of quaffable Merlot down the road.
My small role in David’s case was to get Rick and Stacy up to speed on all things “Englert” and to keep an eye on Bevel, the lesser of two evils. So yesterday, when I heard that Bevel was being recalled as a rebuttal witness, the “BS” detector pegged extreme. Many times you can smell BS from a distance, the trick is to locate it so you don’t step into it.
So, for the umpteenth time this year, I Googled “Tom Bevel blood” – and mind you I was retained counsel in an appeal of another case that he was involved in. For the computer geeks amongst us, call it SEO [Search Engine Optimization]; or for the many here with devout religious foundations, call it “Divine Intervention,” regardless, up popped THE “book review.” I read it somewhat incredulously. I then printed it off and read it 2 or 3 more times, pinching myself as I’m astounded by what I’m reading. I had never seen that before, and I’m fairly certain that if either Rick or Stacy had seen it before Bevel testified on the State’s direct case, they would have shoved it down Bevel’s throat then.
Regardless, after about the 5th time I’d re-read it, I emailed the link to Rick and Stacy, with just a simple note, “Read this! 1 page!” They did.
Contrary to media portrayals, being a competent criminal defense lawyer means about 10 hours of work for every hour in the courtroom for “fact” witnesses, and probably around 100 hours of work for every prosecution expert. It means 20 hour days during trial, little if any contact with friends and loved ones, a diet from hell or vending machines (if you remember to even eat), and having your brain never shutting down even when you sleep.
I got an email at 3:46 am this morning from Rick, which says it all: “Thanks!” I suspect that as many of us do, he checked his emails before trying to grab a couple of hours sleep. I had gone to bed about 45 minutes prior, as I was working on a case that I’ve got coming up in a couple of weeks, and didn’t see it until earlier today.
While the prosecution attempted to tap dance around it, Rick shoved the contents of that Book Review so far down Bevel’s throat, that it went straight into his large intestines.
This post is NOT about me and I don’t want anyone to think anything else. It’s for Rick and Stacy, for their uncompromising dedication and efforts to their client, David, and the sacrifices they’ve made defending him. There are MANY others amongst us, who have made similar sacrifices and this is not to ignore them and their 13 year efforts in seeking justice.
But sometimes, a little bit of luck also helps in the equation. Thank you “Google!”
Don Rehkopf Wow Kristen Stivers – long story, but here’s the condensed version. In 2003 (not a typo), I was working on another murder case in Missouri, where the defendant was convicted solely on Englert’s testimony about HVIS. I had another transcript from another trial that he testified in, which was 180 degrees opposite from the Missouri case. My client’s wife, to help contain expenses, was doing a lot of the internet searches on him and somehow got connected with Sam Lockhart who was doing the same thing. She gave Sam my email address and the rest is history. I provided what information I had at the time to Katharine Liell and Stacy Uliana, David’s defense attorneys in Trial # 2. For various reasons, I stayed in the “shadows” during that trial. When Richard Kammen got substituted in for Kitty for Trial # 3 (because she was a potential witness), I contacted Rick who I’ve known and been friends with for @ 20 years. I had, in the intervening time, had the “opportunity” to personally cross-examine Englert twice and had uncovered even more information, which I provided to Rick and Stacy – probably about 1,000 pages of stuff. At that point, I had become convinced of David’s absolute innocence and so, offered to help out where help was needed, especially in the context of the blood spatter issues. And to save them both some valuable time from answering the inevitable questions everyone not a criminal defense lawyer would have, I jumped on this thread to offer whatever assistance, explanation or commentary to keep everyone informed legally.
http://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1232&context=wmlr IMPROVING PROSECUTORIAL DECISION MAKING, SOME LESSONS OF COGNITIVE SCIENCE, ALAFAIR S. BURKE*
- Bad Lawyering by Don Rehkopf